John S. Barnes Corp.

National Labor Relations Board - Board Decisions

Feb 28, 1950

88 N.L.R.B. 871 (N.L.R.B. 1950)

In the Matter Of JOHN S. BARNES CORPORATION and DISTRICT No. 101,
INTERNATIONAL ASSOCIATION OF MACHINISTS
Case No. 13-RC-45,3.-Decided February .8,1950
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearings in the above-entitled proceed-
ing were held on February 15, 1949, and January 24, 1950, before
Philip Licari and Robert Ackerberg, respectively, hearing officers of
the National Labor Relations Board. The hearing officers' rulings
made at the hearings are free from prejudicial error and are hereby
affirmed. At the close of the hearings, the Employer made a motion
to dismiss the petition. Disposition of the motion was reserved for
the Board.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Reynolds and Murdock].
The Employer moved to dismiss the petition herein upon the fol-
lowing grounds :
a. The Petitioner has initiated an unfair labor practice proceed-
ing against the Employer by filing charges with the Board, and such
proceeding is still pending;
b. A great length of time has elapsed between the date the petition
herein was filed and the final hearing in this proceeding and, there-
fore, there is no basis for presuming that a controversy concerning
representation still exists; and
c. The continuation of the investigation in this case will not effectu-
ate the policies of the Act.
We find no merit in the Employer's first ground for requesting dis-
missal of the petition herein. The Petitioner has filed a waiver with
the Board in which it relinquishes any right or privilege to protest
any election held in this case on any ground set forth in the pending
unfair labor practice proceeding. Therefore, to delay the election un-
88 NLRB No. 161.
871
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
til the validity of the charges referred to are decided would be with-
out purpose.'
The Employer's second reason for requesting dismissal of the peti-
tion herein, on the ground that the petition is stale, is likewise with-
out merit. The petition in this case was filed with the Board on No-
vember 5, 1948, and the initial hearing was held on February 15, 1949..
Because the Employer refused to obey and comply with certain sub-
poenas duly served upon it, the hearing was adjourned and the Board.
was compelled to institute an ancillary proceeding to enforce com-
pliance with its subpoenas. A final disposition of the latter proceed-
ing was not had until the mandate of the Court of Appeals for the,
Seventh Circuit was filed on January 5, 1950. Thereafter, a second
hearing in this case was held on January 24, 1950. It is plain that
the principal reason for delay, in the disposition of this case was the.
Employer's unsuccessful attempt to defeat the processes of the Board.
It appears from the record that on January 24, 1950, the date of the
final hearing in this case, the Employer continued in its refusal to.
recognize the Petitioner's claim that a majority of the employees in
an appropriate unit wish the Petitioner to represent them for purposes.
of collective bargaining. Accordingly, a question of representation.
v: as shown to exist at the hearing. We have in the past directed elec-
tions where a current question of representation was shown to exist at
the hearing, although a long interval had elapsed between the date
on which the petition which initiated the representation proceeding
was filed and the date on which the hearing was held.2 Under the
circumstances of this case, where the delay in concluding the repre-
sentation hearing was due to no fault of the Petitioner, we do not
believe that the petition should be dismissed by reason of such delay.
There is no evidence in the record, and we are aware of no facts
other than those considered above, which support the Employer's
third contention that it would not effectuate the policies of the Act
to continue to process this case. For the foregoing reasons, the Em-
ployer's motion to dismiss the petition herein is hereby denied.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce. within the meaning of
the National Labor Relations Act.
I Olin Industries, Winchester Repeating Arms Company Division , 85 NLRB 396, and cases
cited therein.
I Columbia Pictures Corporation , et at ., 81 NLRB 1313 ; Ifennecott Copper Corporation,
64 NLRB 1377 ; The May Department Stores Company, 77 NLRB 349. upon which the Em-
ployer relies, on its facts is distinguishable from this ease-
JOHN S. BARNES CORPORATION 873
2. The labor organization involved claims to represent certain em-
ployees of the Employer."
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act:
All production and maintenance employees at the Employer's Rock-
ford, Illinois, plant, including roadmen and timekeeper-tool crib
attendants, but excluding office and clerical employees, guards, night
watchmen, professional employees, and supervisors as defined in the
Act.
5. There exists a question as to whether certain individuals who are
not presently employed by the Einployer'and who are the subjects of
the unfair labor practice charges filed by the Petitioner in Case No.
13-CA-157 are eligible to vote in the election. In accordance with.
our usual procedure in such cases, we shall not at this time make a
determination of their eligibility, but shall allow the individuals
named in the charges to participate in the election by casting separate
challenged ballots.4 However, their ballots will be segregated and
will not be counted unless determinative of the results of the election.
In the latter event, the final disposition of this ease Will await the
outcome of the unfair labor practice proceedings which are still under-
consideration. By allowing these persons to vote, We are not to be
taken as having passed in any way on the legality or illegality of their
discharges.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purpose of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case
was heard, and subject to Sections 203.61 and 203.62 of National
Labor Relations Board Rules and Regulations, among the employees
in the unit found appropriate in paragraph numbered 4, above, who
were employed during the payroll period immediately preceding the
"International Union, United Automobile, Aircraft and Agricultural Implement Workers.
of America (UAW-CIO), which moved to intervene in this proceeding, has notified the-
Board that it desires to withdraw from this proceeding. Accordingly, we hereby deny the-
motion of the said union to intervene.
4 Virginia Gear and Machine Corporation, 88 NLRB 58 and cases cited therein.
:874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date of this Direction of Election, including the persons alleged to
have been discriminated against in the unfair labor practice charges
.filed in Case No. 13-CA-157 5 and including employees who did not
-work during said payroll period because they were ill or on vacation
or temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
or not they desire to be represented, for purposes of collective bar-
gaining, by District No. 101, International Association of Machinists.
5 As indicated in paragraph numbered 5, supra, these persons will be permitted to vote
challenged ballots.